State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

AO 09-12-CD

Number: AO 09-12-CD
Requested by: 2006 Knowles for Governor Campaign
Prepared by: Kim Wilson,
Associate Attorney I
Date Issued: December 3, 2009
Subject: AO 09-12-CD- Request for an Advisory Opinion on the legal disbursement of an unanticipated refund check received in 2009 for a 2006 gubernatorial campaign.
Decision: On December 3, 2009, the Alaska Public Offices Commission heard and approved this advisory opinion request as amended by a vote of 5 to 0. The advice in this opinion applies only to the specific activity for which the advice was requested

QUESTION PRESENTED:

May the 2006 Knowles for Governor Campaign disburse a $963.74 worker’s compensation audit refund check, received in 2009, in a manner other than that described under AS 15.13.116(c)? 

SHORT ANSWER:

Yes.  The Commission does not consider the $963.74 property remaining after disbursements were made pursuant to AS 15.13.116(a)-(b) under AS 15.13.116(c).  The Knowles Campaign must distribute the $963.74 under AS 15.13.116(a). 

FACTS

In 2006, Tony Knowles was a candidate for Alaska Governor.  After the general election, the Knowles Campaign closed the campaign’s bank account and in accordance with AS 15.13.116(a)(2)(A), disbursed unused campaign contributions to a political party. 

In May 2009, the Knowles for Governor Campaign received a letter from Liberty Northwest stating that they had issued the Knowles Campaign a $963.74 audit refund check in February, 2008 (well after February 1st, 2007) that had never been cashed.  The Knowles Campaign replied that they were unaware of the status of the missing check and Liberty Northwest sent the campaign a replacement check dated July 7th, 2009. 

The Knowles Campaign does not believe that the $963.74 was held by the campaign on February 1, 2007 and therefore the campaign was unable to disburse the funds under AS 15.13.116(a).  The campaign requests that they be able to disburse these funds under the provisions of AS 15.13.116(a)  within a time certain.  If they fail to meet the time requirement, they would then remit the funds to the Department of Revenue for deposit in the State’s general fund.

ANALYSIS

Under AS 15.13.116(a), a candidate who, after the date of the general election holds unused campaign contributions shall distribute the amount held by February 1.  Unused campaign contributions can be used, among other things, to pay off campaign debts and make various donations. AS 15.13.116(a)-(b).  But any unused campaign contributions, and any other property remaining after disbursements are made under AS 15.13.116(a)-(b) are forfeited to the state. AS 15.16.116(c).         

Here, the Knowles Campaign, in accordance with AS 15.13.116(a) distributed all unused campaign contributions held by the Knowles Campaign on February 1, 2007.  The Knowles Campaign seeks clarification whether the $963.74 can be treated as if it were an unused campaign contribution held by the campaign on February 1, 2007. 

First, the Commission questions whether the $963.74 must be treated as a campaign contribution under AS 15.13.400(4) because the intention of Liberty Northwest in returning the money was not really intended to influence the outcome of an election.  But the Commission presumes that the insurance policy was paid for with campaign contributions.  The refund is aptly characterized as an unused campaign contribution.  But as a practical matter, because the property was not remaining after disbursements were made under AS 15.16.116(a)-(b), the Commission’s characterization of the $963.74 as an unused campaign contribution is not dispositive.   

We conclude that the Knowles Campaign did not “hold” the $963.74 on February 1, 2007.  “Held” is not defined in 15.13.400.  When a statutory term is not defined by the statute itself, it should be given its plain meaning. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line, Co., 746 P.2d 896, 903 (Alaska 1987).  In determining the plain meaning of words, the Commission routinely uses dictionary definitions. Id.  Hold means to “have in one’s possession” or “keep or reserve for someone.”  THE NEW OXFORD AMERICAN DICTIONARY 810 (2001).  On February 1, 2007, the $963.74 was the property of Liberty Northwest.  The Knowles campaign did not have the $963.74 in its possession, nor was the Knowles campaign keeping or reserving the $963.74 for someone else on February 1, 2007.  This has an independent impact on the Commission’s reading of AS 15.13.116(c).  As the $963.74 was not held on February 1, it was also not a remainder of property distributed under AS 15.13.116(a)-(b) held by The Knowles Campaign.  The Knowles Campaign could not have forfeited the $963.74 to the state as a remainder of property held by The Knowles Campaign after February 1, 2007 under AS 15.13.116(c).  Thus, AS 15.13.116(c) does not apply.      

We are aware that in certain cases, such as this, refunds or bills may unavoidably and unknowingly come back to a campaign after the February 1 deadline.  And the current statutes and regulations do not adequately address this situation.  This decision is limited to the specific facts presented.  Future campaigns should not rely on this opinion to knowingly structure return of campaign contributions until after the February 1st deadline.  The Commission urges campaigns to submit requests for future advisory opinions on related matters.     

CONCLUSION

The Knowles for Governor Campaign must disburse the $963.74 audit refund check from Liberty National under AS 15.13.116(a) as if it were held by the campaign on February 1, 2007. 

COMMISSION DECISION

On December 3, 2009, the Alaska Public Offices Commission heard and approved this advisory opinion request as amended by a vote of 5 to 0.

APPLICABLE STATUTES AND REGULATIONS:

STATUTES

AS 15.13.116. Disbursement of campaign assets after election. (a) A candidate who, after the date of the general, special, municipal, or municipal runoff election or after the date the candidate withdraws as a candidate, whichever comes first, holds unused campaign contributions shall distribute the amount held on February 1 for a general election or within 90 days after a special election. The distribution may only be made to

(1) pay bills incurred for expenditures reasonably related to the campaign and the winding up of the affairs of the campaign, including a victory or thank you party, thank you advertisements, and thank you gifts to campaign employees and volunteers, and to pay expenditures associated with post-election fund raising that may be needed to raise funds to pay off campaign debts;
(2) make donations, without condition, to
(A) a political party;
(B) the state's general fund;
(C) a municipality of the state; or
(D) the federal government;
(3) make donations, without condition, to organizations qualified as charitable organizations under 26 U.S.C. 501(c)(3) if the organization is not controlled by the candidate or a member of the candidate's immediate family;
(4) repay loans from the candidate to the candidate's own campaign under AS 15.13.078 (b);
(5) repay contributions to contributors, but only if repayment of the contribution is made pro rata in approximate proportion to the contributions made using one of the following, as the candidate determines:
(A) to all contributors;
(B) to contributors who have contributed most recently; or
(C) to contributors who have made larger contributions;
(6) establish a fund for, and from that fund to pay, attorney fees or costs incurred in the prosecution or defense of an administrative or civil judicial action that directly concerns a challenge to the victory or defeat of the candidate in the election;
(7) transfer all or a portion of the unused campaign contributions to an account for a future election campaign; a transfer under this paragraph is limited to
(A) $50,000, if the transfer is made by a candidate for governor or lieutenant governor;
(B) $10,000, if the transfer is made by a candidate for the state senate;
(C) $5,000, if the transfer is made by a candidate for the state house of representatives; and
(D) $5,000, if the transfer is made by a candidate for an office not described in (A) - (C) of this paragraph;
(8) transfer all or a portion of the unused campaign contributions to a public office expense term account or to a public office expense term account reserve in accordance with (d) of this section; a transfer under this paragraph is subject to the following:
(A) the authority to transfer is limited to candidates who are elected to the state legislature;
(B) the public office expense term account established under this paragraph may be used only for expenses associated with the candidate's serving as a member of the legislature;
(C) all amounts expended from the public office expense term account shall be annually accounted for under AS 15.13.110 (a)(4); and
(D) a transfer under this paragraph is limited to $5,000 multiplied by the number of years in the term to which the candidate is elected plus any accumulated interest; and
(9) transfer all or a portion of the unused campaign contributions to a municipal office account; a transfer under this paragraph is subject to the following:
(A) the authority to transfer is limited to candidates who are elected to municipal office, including a municipal school board;
(B) the municipal office account established under this paragraph may be used only for expenses associated with the candidate's serving as mayor or as a member of the assembly, city council, or school board;
(C) all amounts expended from the municipal office account shall be annually accounted for under AS 15.13.110 (a)(4); and
(D) a transfer under this paragraph is limited to $5,000.
(b) After a general, special, municipal, or municipal runoff election, a candidate may retain the ownership of one computer and one printer and of personal property, except money, that was acquired by and for use in the campaign. The current fair market value of the property retained, exclusive of the computer and printer, may not exceed $5,000. All other property shall be disposed of, or sold and the sale proceeds disposed of, in accordance with (a) or (c) of this section. Notwithstanding any other provision of this chapter,
(1) a candidate may (A) retain a bulk mailing permit that was paid for with campaign funds, and (B) use personal funds, campaign funds, or unused campaign contributions transferred to a public office expense term account under (a)(8) of this section to pay the continuing charges for the permit after the election; money used to continue the life of the permit is not considered to be a contribution under this chapter; in addition to any other use permitted under this chapter, during the candidate's term of office, the candidate may use the bulk mailing permit for mailings associated with service in the office to which the candidate was elected; during the candidate's term of office, if the candidate files a declaration of candidacy or the document necessary to permit the candidate to incur election-related expenses under AS 15.13.100 for the same or a different elective office, the candidate may also use the bulk mailing permit in that election campaign;
(2) a candidate may retain campaign photographs and use the photographs for any purpose associated with service in the office to which the candidate was elected;
(3) a candidate may retain seasonal greeting cards purchased with campaign funds; and
(4) campaign signs prepared for an election that has already taken place have no monetary value and may be retained or disposed of at the candidate's discretion.
(c) Property remaining after disbursements are made under (a) - (b) of this section is forfeited to the state. Within 30 days, the candidate shall deliver the property to the Department of Revenue. The Department of Revenue shall deposit any money received into the general fund and dispose of any other property in accordance with law.
(d) After a general or special election, a candidate for the state legislature who has been elected to the state legislature in that election may, from the amount retained in the public office expense term account reserve under this subsection, transfer to a public office expense term account not more than $5,000 each calendar year for use only for expenses associated with the candidate's serving as a member of the legislature, except that a senator serving a two-year term may transfer not more than $10,000 each calendar year. A candidate for the senate may transfer up to $20,000 from unused campaign contributions to a public office expense term account reserve. A candidate for the house of representatives may transfer up to $10,000 from unused campaign contributions to a public office expense term account reserve. The public office expense term account reserve may only be used to make transfers to the public office expense term account. At the end of the candidate's term of office, a balance in the public office expense term account reserve must be disposed of as provided in (a) of this section but may not be disposed of as provided in (a)(1), (4), or (6) - (9) of this section. All amounts expended under this subsection shall be annually accounted for under AS 15.13.110 (a)(4). (§ 19 ch 48 SLA 1996; am §§ 8, 9, 10 ch 74 SLA 1998; am §§ 4-6 ch 3 SLA 2002; am § 15 ch 108 SLA 2003)

AS 15.13.374. Advisory opinion. (a) Any person may request an advisory opinion from the commission concerning this chapter, AS 24.45, AS 24.60.200 - 24.60.260, or AS 39.50. (b) A request for an advisory opinion (1) must be in writing or contained in a message submitted by electronic mail; (2) must describe a specific transaction or activity that the requesting person is presently engaged in or intends to undertake in the future; (3) must include a description of all relevant facts, including the identity of the person requesting the advisory opinion; and (4) may not concern a hypothetical situation or the activity of a third party. (c) Within seven days after receiving a request satisfying the requirements of (b) of this section, the executive director of the commission shall recommend a draft advisory opinion for the commission to consider at its next meeting. (d) The approval of a draft advisory opinion requires the affirmative vote of four members of the commission. A draft advisory opinion failing to receive four affirmative votes of the members of the commission is disapproved.

REGULATIONS

2 AAC 50.394. Reporting final disbursement of campaign assets and satisfaction of campaign debts. (a) Within 10 days after the date all assets of a candidate’s, group’s, or nongroup entity’s campaign account are disbursed and all campaign debts are paid, the candidate, group, or nongroup entity must file a final report setting out the disbursement of those assets and the payment of those debts.

(b) A candidate, group, or nongroup entity must continue to file year-end reports as required by AS 15.13.110(a)(4) for a campaign until the candidate, group, or nongroup entity files the final report required by (a) of this section.

(c) A candidate, group, or nongroup entity may not file the final report required by (a) of this section until all assets of the candidate’s, group’s, or nongroup entity’s campaign account are disbursed and all campaign debts are paid. (Eff. 1/1/2001, Register 156, am 2/20/2005, Register 173)

Authority: AS 15.13.010 AS 15.13.030 AS 15.13.110